In 2015 the Village of East Hampton enacted five local laws reducing the maximum allowable gross floor area for residences, reducing the maximum permitted coverage for all structures, reducing the maximum allowable gross floor area for accessory buildings, amending the definition of “story” and amending the definition of “cellar”. The petitioner/plaintiffs (“petitioners”) own real property in the Village and commenced a hybrid Article 78 proceeding and Declaratory Judgment action entitled Bonacker Property, LLC v. Village of East Hampton Board of Trustees et al.,Supreme Court, Suffolk County, Index No. 15-12506, September 2, 2016, challenging the enactment of the local laws. Petitioners sought to annul the Board of Trustee’s adoption of a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and claimed that (i) the local laws were not in accordance with the Village Comprehensive Plan, (ii) the Board of Trustees improperly relied upon recommendations from the Planning and Zoning Committee, and (iii) the Board of Trustees failed to comply with SEQRA. The petition also sought declaratory relief. The Supreme Court denied the petition, dismissed the proceeding/action and declared the local laws constitutional and valid. The petitioners appealed.

The Appellate Division, Second Department upheld the Supreme Court’s determination in Matter of Bonacker Property, LLC et al, v. Village of East Hampton Board of Trustees, et al., dated January 23, 2019. The Court noted that New York State Village Law §7-722(11)(a) requires that where a village has adopted a comprehensive plan, the village’s zoning decisions must be in accordance with the plan. However, the Court went on to recognize the presumption of validity afforded to the legislative act of enacting zoning laws. The Court quoted Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, stating “[e]ven if the validity of a provision is fairly debatable, the municipality’s judgment as to its necessity must control.” Ultimately, the Court found the enactments limiting gross floor area and coverage “entirely consistent with the comprehensive plan.”

The Court also found that the Village Board of Trustees complied with the requirements of SEQRA stating the Board identified the relevant areas of environmental concern, took the requisite “hard look” at them and made a reasoned elaboration in its negative declaration. The Court stated, “[g]iven the nature of the proposed action here, which would have only beneficial environmental effect, and the focus of the assessment form, which is to identify negative environmental effects of the proposed action, the rapid review and completion of the environmental assessment form was not arbitrary or capricious.”

Moreover, the Court found that the record supported the Supreme Court’s determination that the Planning and Zoning Committee was advisory in nature, did not perform governmental functions and it was proper for the Board of Trustees to rely on the committee’s advice pertaining to the enactment of the local laws.

Ultimately, the Court upheld the Supreme Court’s determination with regard to the Article 78 claims however remanded the declaratory judgment claims back to the Supreme Court since the Supreme Court improperly employed the summary procedure applicable to an Article 78 proceeding to dispose causes of action to recover damages or seeking declaratory judgment. The Court noted, “where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action.” Thus, the Court remitted the matter back to the Supreme court for further proceedings on those causes of action for damages and declaratory judgment. Finally, the Court expressed no opinion as to the merits of those claims.

Due to the proliferation of advanced mobile devices, such as smartphones and tablets, wireless service providers anticipate a significant increase in data traffic over their networks in the next few years. As a result, mobile operators have been compelled to find new ways to increase their network capacity, provide better coverage and reduce network congestion. One solution has been to create a new small cell network consisting of a series of small low-powered antennas – sometimes called nodes – that are typically attached to existing utility poles or streetlights located in the public right of way. In many municipalities, however, service providers and their contractors are facing strong opposition from elected officials and residents who have expressed concerns about the impacts from this new equipment.

The City of Rye (“City”) entered into a right of way use agreement (“RUA”) with NextG Networks of NY, Inc. (“NextG”) on February 17, 2011. Pursuant to the RUA, NextG was authorized to install and operate a form of small cell technology, known as distributed antennae systems (“DAS”), to expand existing wireless telephone services and coverage by installing its equipment within the public right of way (“ROW”), mostly on pre-existing utility poles. Between 2011 and 2015, NextG installed nine nodes within the public ROW on existing utility poles.

The RUA precluded NextG from assigning or transferring its rights under the agreement, except in limited circumstances and only with prior written notice of its intent to make such a transfer. Thereafter, on April 10, 2012, NextG became a wholly owned indirect subsidiary of Crown Castle International Corp., but NextG did not notify the City of its transfer of rights under the RUA until May 25, 2012.

In December of 2015, in some unspecified manner, Crown Castle advised the City of its intent to install equipment cabinets within the public ROW that are dimensionally larger than the pre-existing cabinets. The request was memorialized in a letter from Crown Castle to the City Council on April 8, 2016. In a subsequent letter, dated June 24, 2016, Crown Castle requested that the City Council adopt a resolution confirming that its application to install larger equipment cabinets was a Type II action under SEQRA or, alternatively, adopt a SEQRA “negative declaration” at its next public meeting.

Public hearings were held on Crown Castle’s application in July, August, and October of 2016 and in April of 2017. At the October 5, 2016 public hearing, the City Council declared its intention to as serve as lead agency for purposes of reviewing Crown Castle’s application under SEQRA. During the April 22, 2017 public hearing, the City Council issued a “positive declaration” for the proposed project under SEQRA. It also indicated that, in the event that the application is determined to be exempt from SEQRA, the application should be denied.

A positive declaration is a determination that an action may result in one or more significant environmental impacts and requires a comprehensive environmental review of the action, including the preparation and review of an environmental impact statement (“EIS”), before an agency decision may be made regarding the action. The SEQRA regulations contain mandatory minimum and maximum time periods associated with the processing of EISs that necessarily postpones a lead agency’s final decision until after the SEQRA process has been completed. A negative declaration is a determination by the lead agency that an action will not result in a significant adverse environmental impact and consequently no EIS will be prepared.

Following the City Council’s adoption of a positive declaration, Crown Castle commenced an action in the United States District Court for the Southern District of New York, entitled Crown Castle NG East LLC v. The City of Rye, et al., 17 CV 3535 (E.D.N.Y., December 8, 2017), alleging that the City and City Council violated the RUA and the TCA. Crown Castle also alleged claims under Article 78 of the CPLR and the New York State Transportation Corporations Law (“TCL”). The City moved to dismiss the complaint on the basis that Crown Castle failed to state a TCA claim.

Section 253(a) of the TCA provides that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” Section 253(c) further provides that “nothing in this section affects the authority of a . . . local government to manage the public rights-of-way . . . on a competitively neutral and nondiscriminatory basis.” Section 332(c)(7)(B)(iii) states that “any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence in a written record.”

With respect Crown Castle’s claim that the City’s 18-month delay in providing a decision on its application amounted to a prohibition of telecommunications services under TCA § 253(a), the Court disagreed and held that the City’s review process, including the associated SEQRA review, was not a “legal requirement” prohibited under TCA § 253(a). It also noted that the TCA does not render a SEQRA review or any delays associated with that review a violation of federal law.

In support of its holding, the Court cited the District Court’s decision in New York SMSA Ltd. P’Ship v. Town of Riverhead Town Board, 118 F.Supp.2d 333 (E.D.N.Y. 2000), aff’d, 45 Fed App’x. 24 (2d Cir. 2002), where the court noted that “a positive SEQRA declaration necessarily delays a final decision” and that “this court will not hold that a local government’s invocation of that statute is precluded because of the existence of the TCA.” The Court also held that municipal review alone cannot be a proscribed barrier to entry under Section 253(a) because the TCA § 332 requirement for “substantial evidence” necessitates a thorough review in order to justify the denial of a request to place, construct, or modify wireless facilities.

The Court also rejected Crown’s other TCA claims. It found that TCA § 253(c) does not create a stand-alone violation of the TCA because it is a safe harbor for municipalities or a “savings clause” that carves out liability rather than imposes it. The Court also found that because the City’s “denial” was hypothetical, it was neither a “regulation” nor a “decision” for purposes of stating a TCA § 332(c)(7)(B) claim. Moreover, the Court noted that the purported “denial” was not a final decision for Section 332 because a SEQRA positive declaration is not a final agency decision that is reviewable under New York law. Accordingly, the City’s motion to dismiss was granted.

While these two decisions represent significant victories for the City of Rye and its residents, both decisions were made on procedural grounds, and neither addressed the merits of Crown Castle’s federal and state law claims. Communities throughout New York and elsewhere that have been presented with applications for the installation of small cell nodes will undoubtedly be watching closely to see how Crown Castle’s battle with the City of Rye ultimately plays out.